Your Right to Know

WASHINGTON — The Supreme Court is scheduled to hear an hourlong argument this morning about the
constitutionality of Proposition 8, California’s ban on same-sex marriage. Here is a look at the
background of the case, Hollingsworth v. Perry, No. 12-144; the issues it raises; the attorneys who
will argue it; and the possible outcomes.

Q: What is at stake?

A: If the court is to establish a constitutional right to same-sex marriage, it
will be in this case and not in a narrower one to be argued on Wednesday about the federal Defense
of Marriage Act.

Q: How did the case start?

A: In 2008, just months after the California Supreme Court endorsed same-sex
marriage, the state’s voters amended the state constitution to repudiate the ruling and ban such
unions. Two prominent lawyers, Theodore B. Olson and David Boies, challenged the ban as a violation
of the federal Constitution on behalf of two same-sex couples.

The lawyers are ideological opposites who faced off in Bush v. Gore, the Supreme Court case in
late 2000 that delivered the presidency to George W. Bush. Some gay-rights activists worried that
their legal strategy in this case was too aggressive.

After a trial, a judge in San Francisco struck down Proposition 8 in a broad ruling whose logic
would apply to bans around the nation. California officials did not appeal the ruling.

The U.S. 9th Circuit Court of Appeals, in San Francisco, ruled that proponents of Proposition 8
had standing to appeal the judgment against the state. The court then affirmed the trial judge’s
decision but on a narrower ground, saying voters were not entitled to withdraw a constitutional
right once it had been established by the state Supreme Court.

The reasoning of the appeals-court decision, calculated to appeal to Justice Anthony M. Kennedy,
would not directly threaten bans in other states.

Q: What is the Obama administration’s position?

A: Solicitor General Donald B. Verrilli Jr. urged the Supreme Court to strike down
Proposition 8, focusing on a ground that would apply to California and seven other states. He said
it violated the Constitution’s equal-protection clause to confer all the benefits and burden of
marriage on gay couples through civil unions but withhold the label
marriage.

Q: How long will the argument last?

A: The argument is scheduled for one hour. It will probably start around 10:15
a.m., after one or more of the justices summarize decisions released that day. In major cases,
Chief Justice John Roberts typically allows lawyers a little extra time. Transcripts and audio
recordings will be available by about 1 p.m.

Q: Who is arguing?

A: Charles J. Cooper, a lawyer for the proponents of Proposition 8, will have half
an hour. He will probably get questions about his clients’ standing and the reasons offered to
support the ban on same-sex marriage. Olson, representing the couples who are challenging the ban,
has 20 minutes. He will most likely be asked why the issue should be withdrawn from public debate
and a fast-moving political process. Verrilli will have 10 minutes, and he will probably be asked
about shifts in the Obama administration’s positions.

Q: What legal standard will the Supreme Court use?

A: In ordinary cases, courts considering whether a federal law violates
equal-protection principles merely ask whether the law can be justified by a rational reason. That
is a low bar, though several courts have struck down laws discriminating against gay people under
that standard. Gay-rights advocates are hoping that the Supreme Court will embrace a more-robust
standard of review, “heightened scrutiny,” which requires a showing that the challenged law is “
substantially related to an important government objective.” Victory on that point could put all
same-sex marriage bans at risk.

Q: What justifications have supporters of Proposition 8 offered?

A: They say that preserving the traditional definition of marriage will “further
society’s vital interests in responsible procreation and child-rearing.” Those interests would be
undermined, they say, by “officially redefining marriage as a genderless institution.” It is
rational, they add, to proceed with caution in changing the definition of marriage, to respect
societal judgments made through the democratic process.

Q: How do supporters of same-sex marriage respond?

A: They say that allowing gay couples to marry would not make it any more likely
that straight couples would act irresponsibly. They add that courts must protect the fundamental
rights of disfavored minorities.

Q: Who are the justices to watch?

A: Kennedy probably holds the decisive vote, and he is the author of the two
leading gay-rights cases. But he is notoriously hard to read. Roberts may be intrigued by the
standing question, and his questions on that issue may suggest whether he might find dismissal on
that ground an attractive offramp.

Q: What are the possible outcomes?

A: The court may say the Constitution requires all states to allow gay couples to
marry. At the other extreme, the court may say the Constitution is silent on the question, leaving
states free to allow or reject same-sex marriage. (There is no possibility that the court would ban
same-sex marriage in places that choose to permit it.)

There also are intermediate possibilities. The court could adopt a rationale that would apply
only to California similar to the one endorsed by the 9th Circuit. It could adopt the “eight-state
solution” suggested by the Obama administration. Or it could dismiss the case for want of standing,
which probably would effectively allow same-sex marriages in California, the nation’s most populous
state.